Derek Asklar and Pauline Asklar v. David Gilb, Paul Garrett Smith d/b/a P.H. One Trucking, Empire Fire and Marine Ins. Co., d/b/a Zurich Travelers Ideminity Co. of America

FOR PUBLICATION
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
DEREK ASKLAR AND EMPIRE FIRE & MARINE
PAULINE ASKLAR: INSURANCE COMPANY
d/b/a ZURICH:
THOMAS A. MANGES
Roby & Manges DIANA C. BAUER
Fort Wayne, Indiana Carson Boxberger, LLP
Fort Wayne, Indiana
FILED
Nov 15 2012, 9:19 am

IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court

DEREK ASKLAR and PAULINE ASKLAR, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 02A03-1204-CT-170
)
DAVID GILB, PAUL GARRETT SMITH )
d/b/a P.H. ONE TRUCKING, EMPIRE FIRE )
AND MARINE INSURANCE CO., )
d/b/a ZURICH, )
)
Appellees-Defendants, )
)
__________________________________ )
TRAVELERS INDEMNITY COMPANY OF )
AMERICA, )
)
Intervenor. )

APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Stanley A. Levine, Judge
Cause No. 02D01-1003-CT-130

November 15, 2012

OPINION - FOR PUBLICATION

VAIDIK, Judge
 Case Summary

Derek and Pauline Asklar (“the Asklars”) appeal the trial court’s decision to grant

summary judgment in favor of Empire Fire and Marine Insurance Company (“Empire”).

The Asklars contend that the trial court erred in holding that as a matter of law, Georgia

law governs this dispute and that Empire’s uninsured/underinsured motorist coverage

limit was only $75,000. Finding that Indiana law should apply in this case, but that

Empire’s uninsured/underinsured motorist coverage limit is still only $75,000, we affirm

in part and reverse in part.

Facts and Procedural History

On July 30, 2008, Derek Asklar was employed by Premium of North Carolina, and

his services were being leased by Werner Transportation Services, Inc., a Georgia

corporation. He was driving a semi-tractor trailer, owned by Schilli Leasing, an Indiana

company, westbound on I-68 in West Virginia. The tractor-trailer was registered,

principally garaged, and licensed in Indiana. Appellant’s App. p. 199. While stopped at

the bottom of an exit ramp, Derek’s tractor-trailer was hit from behind by another semi

truck driven by David Gilb in the course of his employment with One Trucking. As a

result of the collision, six other people were injured, Derek required medical treatment,

including neck surgery, and he has been unable to work since. Gilb’s truck was insured

by Northland Insurance Company and had a single liability limit of $1,000,000. Because

of all of the claims against Gilb resulting from this collision, Derek also attempted to

recover under Werner Transportation’s uninsured/underinsured (UM/UIM) motorist

coverage.

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 Werner Transportation’s liability insurance was with Empire. It provided

$5,000,000 in liability coverage, but only $75,000 in UM/UIM motorist coverage. Id. at

88. John Werner, in writing and on behalf of Werner Transportation, elected to reduce

the amount of UM/UIM coverage under its policy to $75,000. Appellee’s App. p. 16-20.

The Asklars brought suit against Gilb, One Trucking, Northland Insurance

Company, and Werner Transportation’s insurance company, Empire, alleging negligence

and seeking compensation for his injuries. Empire was joined in the lawsuit to determine

how much of its UM/UIM coverage was available to Derek to fully compensate him for

his injuries. After filing the lawsuit, the Asklars filed a motion for partial summary

judgment against Empire, alleging that the UM/UIM coverage limit should be $5,000,000

under Indiana law. Empire filed a memo in opposition and filed its own motion for

summary judgment, alleging that Georgia law applied to this case and the UM/UIM

coverage was in accordance with the law at $75,000. The trial court held a hearing on the

cross motions for summary judgment and granted Empire’s motion and denied the

Asklars’ motion.

The Asklars filed a motion to correct errors, and Empire filed a statement in

opposition. The trial court held a hearing on the motion to correct errors and entered an

order denying the motion.

The Asklars now appeal.

Discussion and Decision

There are three arguments raised on appeal: (1) whether the Asklars waived the

argument that Georgia law does not apply by admitting in open court that it applied; (2)

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whether the trial court erred in granting summary judgment for Empire and finding that

Georgia law applied; and (3) whether the trial court erred in granting summary judgment

for Empire and finding its UM/UIM coverage limit to be $75,000.

I. Waiver

Empire contends that the Asklars have waived the argument that Georgia law does

not apply to this case because his attorney admitted in open court that Georgia law did

apply. A judicial admission is “a clear and unequivocal admission of fact, or a formal

stipulation that concedes any element of a claim or defense . . . .” Bandini v. Bandini,

935 N.E.2d 253, 265 (Ind. Ct. App. 2010) (emphases added).

In this case the following exchange took place between the trial court judge and

the Asklars’ attorney during a discovery motion hearing:

THE COURT: It’s not a coverage issue. It’s not whether they gave
notice and all of those contractual questions. The
question is to the amount of the underinsured motorist
and whether there was a proper waiver, correct?

MANGES: Correct

THE COURT: Under Georgia law?

MANGES: Yes, absolutely.

Appellee’s App. p. 47. Empire argues that this constitutes a judicial admission. We

disagree.

The statement made by the Asklars’ attorney at the hearing was neither a factual

admission nor an element of the claim being asserted; this was a statement dealing with

the potential choice-of-law issue that may arise in this case. Because this statement does

not fall under the definition of a judicial admission, we find that the Asklars’ attorney did

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not make a binding admission that Georgia law applies in this case, and the issue is

therefore not waived for our review.

II. Summary Judgment

When reviewing the entry or denial of summary judgment, our standard of review

is the same as that of the trial court: summary judgment is appropriate only where there

is no genuine issue of material fact and the moving party is entitled to a judgment as a

matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904

N.E.2d 1267, 1269 (Ind. 2009). All facts established by the designated evidence, and all

reasonable inferences from them, are to be construed in favor of the nonmoving party.

Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind. 2007).

A. Application of Georgia Law

Finding that the Asklars have not waived the argument that Georgia law does not

apply, we now must address the issue of whether the trial court erred in granting

summary judgment for Empire and finding that Georgia law applies. The Asklars

contend that the trial court erred in granting summary judgment in favor of Empire,

arguing that Indiana law is applicable in this situation.

Indiana Code section 9-25-4-1(b) deals with the financial requirements of Indiana

drivers and provides in relevant part:

A person may not:
(1) register a motor vehicle;
* * * * *
in Indiana if financial responsibility is not in effect with respect to the
motor vehicle under section 4 of this chapter, or the person is not otherwise
insured in order to operate the motor vehicle.

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Indiana Code section 27-7-5-2 addresses UM/UIM insurance and states that it applies to

“any motor vehicle registered or principally garaged in this state.” While we recognize

that Stonington Insurance Company v. Williams, 922 N.E.2d 660, 665 (Ind. Ct. App.

2010), provides a five-factor analysis for choice-of-law issues, looking at these two

statutes together, we find that in this case we need not reach this analysis because there is

no choice-of-law issue. But see id. (court engaged in a five-factor analysis to determine

which state had the most significant relationship to the parties and the transaction,

considering: (a) the place of contracting; (b) the place of negotiation of the contract; (c)

the place of performance; (d) the location of the subject matter of the contract; and (e) the

domicile, residence, nationality, place of incorporation and place of business of the

parties). Any vehicle that is registered or principally garaged in Indiana must comply

with Indiana insurance requirements, regardless of the fact that Werner Transportation is

a Georgia corporation.

Since the tractor-trailer Derek was driving was registered, principally garaged, and

licensed in Indiana, it therefore must meet the financial responsibility requirements set

out in Indiana Code section 9-25-4-4 and the UM/UIM requirements set out in Indiana

code section 27-7-5-2. Indiana law applies in this case, and the trial court erred in

holding that the Georgia statute was the applicable law.

B. Amount of Coverage

Indiana Code section 9-25-4-4 provides, in relevant part, that “A motor vehicle

liability policy under this article must contain the terms, conditions, and provisions

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required by statute and must be approved by the state insurance commissioner.” Ind.

Code § 9-25-4-4(b).

One of those requirements is set forth in Indiana Code section 9-25-4-5 and

determines the amount of minimum financial responsibility each driver must have.

Another statutory requirement is UM/UIM insurance. This requirement is set forth in

Indiana Code section 27-7-5-2, which states in relevant part:

(a) [T]he insurer shall make available, in each automobile liability or motor
vehicle liability policy of insurance which is delivered or issued for
delivery in this state with respect to any motor vehicle registered or
principally garaged in this state, insuring against loss resulting from
liability imposed by law for bodily injury or death suffered by any person
and for injury to or destruction of property to others arising from the
ownership, maintenance, or use of a motor vehicle, or in a supplement to
such a policy . . . .

The amount of UM/UIM insurance must be “at least equal to the limits of liability

specified in the bodily injury liability provisions of an insured’s policy, unless such

coverages have been rejected in writing by the insured.” Id.

In this case, Empire’s bodily injury liability limit was $5,000,000, so that would

be Werner Transportation’s required UM/UIM liability coverage under Indiana law if it

had not rejected such coverage. In order to reject UM/UIM coverage, the rejection must

be in writing and specify:

(1) that the named insured is rejecting:
(A) the uninsured motorist coverage;
(B) the underinsured motorist coverage; or
(C) both the uninsured motorist coverage and the underinsured
motorist coverage;
that would otherwise be provided under the policy; and
(2) the date on which the rejection is effective.

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Id. Werner signed a form rejecting the full UM/UIM coverage under Werner

Transportation’s Empire insurance policy each April before the policy period began on

May of that year. Appellee’s App. p. 14-20. He elected to maintain coverage in the

amount of $75,000 instead of $5,000,000, and he signed, dated and returned the form,

indicating the time at which the rejection of the full policy was to be effective. These

rejections were explicit and in accordance with Indiana Code section 27-7-5-2. They also

follow the DePrizio rule, which indicates that if an insurance company wants to eliminate

any or all UM/UIM coverage, it should either:

1) secure[] the written waiver of coverage required under the statute and
include[] the waiver within the policy prior to the commencement of
coverage; or 2) if [the insurance company wants] to remove UM/UIM
coverage during the policy’s term, it should [] propose[] a modification to
such effect and offer[] to reduce the premium to reflect the removed
coverage. In either case, it would be clear that the existence or
nonexistence of UM/UIM coverage was a negotiated term of the policy.

Liberty Mut. Fire Ins. Co. v. Beatty, 870 N.E.2d 546, 551 (Ind. Ct. App. 2007). Here, the

rejection of the UM/UIM coverage took place before the policy period began, allowing it

to be considered a negotiated term of the policy, as required by Indiana case law.

We therefore find that the trial court did not err in granting summary judgment to

Empire and finding that its UM/UIM coverage limit was $75,000.

Affirmed in part and reversed in part.

MATHIAS, J., and BARNES, J., concur.

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